Defiance Hospitals

National Labor Relations Board - Board Decisions

Jan 11, 2000

330 N.L.R.B. 492 (N.L.R.B. 2000)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 492
Defiance Hospital, Inc. and District 1199, the Health
Care and Social Services Union, SEIU, AFL–
CIO, CLC and Office & Professional Employees
International Union, Local 514. Cases 8–CA–
27724, 8–CA–28943, and 8–CA–29131
January 11, 2000
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS LIEBMAN
AND BRAME
On March 30, 1998, Administrative Law Judge Marion
C. Ladwig issued the attached decision. The Respondent
filed exceptions, a supporting brief, and a reply brief.
The General Counsel filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions2
and to adopt the recommended Order as modified be-
low.3
1. The Respondent contends, in its exceptions and a
motion to strike, that comments the judge made off the
record and in his decision show the judge was biased and
prejudiced, and therefore the decision should be struck.
We find no merit in the Respondent’s contention.
First, regarding the off-the-record comments to one of
the Respondent’s attorneys, the Respondent did not ob-
ject on the record at the time the comments were made.
See Canal Electric Co., 245 NLRB 1090 fn. 2 (1979).
Neither did the Respondent comply with Section 102.37
of the Board’s Rules by moving the judge to disqualify
himself before the filing of the decision. See Chesa-
peake & Potomac Telephone Co., 287 NLRB 588
(1987), and Top Form Mills, 273 NLRB 1246 (1984),
enfd. 789 F.2d 262 (4th Cir. 1986). Instead, the Respon-
dent raised this contention only after the judge filed an
adverse decision. Under the circumstances, we find this
contention untimely.
Second, we are satisfied, after a careful review of the
record as a whole, that the Respondent was accorded a
full and fair hearing, that the judge’s findings of fact are
supported by the record, and that the judge’s conclusions
of law are in accord with Board precedent. In so con-
cluding, it is not necessary for us to adopt, or even to
parse, each of the judge’s characterizations of some of
the Respondent’s arguments.4

1 The Respondent has excepted to some of the judge's credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
2 In Conclusion of Law 2, the judge stated that the Respondent had
refused to engage in contract negotiations with the joint representative
since September 24, 1996. The correct date is June 6, 1997.
3 In par. 2(c) of the recommended Order, the judge refers to the 1994
merger. The correct date is 1995. The judge also inadvertently failed
to include a “cease-and-desist” remedial provision for his finding that
the Respondent violated the Act by failing to furnish the Unions with
requested bargaining information. We shall modify the judge’s rec-
ommended Order and notice to employees accordingly.
Accordingly, we find no merit in the Respondent’s ex-
ception, and we deny the Respondent’s motion to strike
the judge’s decision and request for a de novo review of
the record.
2. The Respondent has excepted to the judge’s finding
that it violated Section 8(a)(5) by unilaterally announcing
a wage increase on January 17, 1997, without affording
SEIU District 1199 and OPEIU Local 514 (the joint rep-
resentative) the opportunity to bargain over the amount
of the increase.
The Respondent argues that it did not act unilaterally
because it “met with representatives from both the
OPEIU and SEIU before implementing the wage in-
crease and before informing the bargaining unit employ-
ees of the wage increase.” (Emphasis in original.) The
Respondent also relies on the written notice it provided
the Unions of the wage increase. For the following rea-
sons, we find no merit in these contentions.
“It is settled law that an employer violates Section
8(a)(5) and (1) if a material change in the conditions of
employment is made without consulting with the em-
ployees’ bargaining representative and providing a mean-
ingful opportunity to bargain.” Ciba-Geigy Pharmaceu-
ticals Division v. NLRB, 722 F.2d 1120, 1126 (3d Cir.
1983). “An employer must inform the union of its pro-
posed actions under circumstances which at least afford a
reasonable opportunity for counter arguments or propos-
als.” NLRB v. Centra, 954 F.2d 366, 372 (6th Cir. 1992).
“If a policy is implemented too quickly after notice is
given, or an employer has no intention of changing its
mind, the notice constitutes nothing more than informing
the union of a fait accompli.” Id.
Here, Hospital Administrator Richard Sommer testi-
fied that on January 16 and 17, 1997, after he had de-
cided to grant a 3-percent wage increase, he met with
union representatives for the purpose of “letting them
know what we had done in terms of the increase and the
percentage . . . .” In those meetings, Sommer presented
the representatives with copies of two letters that were
about to be posted and mailed. One letter was addressed
to the employees and one was addressed to the Unions;
each was dated January 17, 1997. The letter to the em-
ployees announced that “the Hospital will process a three
percent across the board wage increase” and that it “will
appear on your February 6 paycheck.” The letter to the
union representatives also advised them of the three-
4 For example, while we agree with the judge that the Respondent’s
10(b) defense lacks merit, we would not characterize the defense as
“frivolous.”
330 NLRB No. 70
DEFIANCE HOSPITAL 493
percent wage increase and added that they should contact
Sommer before January 24 if they had any objections or
questions.
In these circumstances, we find that the Respondent
presented the Unions with a fait accompli. Sommer’s
own testimony shows that his meetings with the union
representatives were strictly perfunctory, informing them
of a decision already made and about to be announced to
the bargaining unit employees. Similarly, although
Sommer’s letter to the Unions purported to give them 7
days to respond, in fact there was no meaningful oppor-
tunity for bargaining because Sommer simultaneously
issued a letter to employees announcing the wage in-
crease. “By announcing the [wage increase] to the [Un-
ions] at the same time as all other employees, the Re-
spondent essentially ignored the representative status of
the employees’ bargaining agent. Such failure to ac-
knowledge the [Unions’] proper role in negotiating terms
and conditions of employment severely diminished, if
not effectively foreclosed, any meaningful opportunity
for the [Unions] to exercise [their] authority in any sub-
sequent discussion of this matter.” Roll & Hold Ware-
house & Distribution Corp., 325 NLRB 41, 42 fn. 4
(1997), enfd. 162 F.3d 513 (7th Cir. 1998). See Ciba-
Geigy Pharmaceuticals Division, 264 NLRB 1013, 1017
(“most important factor” dictating finding that em-
ployer’s announcement of change was “fait accompli”
was that the union was notified at the same time as the
employees), enfd. 722 F.2d 1120 (3d Cir. 1983).
Accordingly, for all of the above reasons, we adopt the
judge’s finding that the Respondent violated Section
8(a)(5) and (1) of the Act by announcing its unilateral
decision to grant a wage increase for bargaining unit em-
ployees without affording the Unions adequate notice
and opportunity to bargain on the amount of the wage
increase.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Defiance
Hospital, Inc., Defiance, Ohio, its officers, agents, suc-
cessors, and assigns, shall take the action set forth in the
Order as modified.
1. Insert the following as paragraph 1(d) and reletter
the remaining paragraph accordingly.
“(d) Refusing to furnish SEIU District 1199 and
OPEIU Local 514 information that is relevant and neces-
sary to the Unions’ role as the joint representative of the
bargaining unit employees.”
2. Substitute the following for paragraph 2(c).
“(c) On request, process all grievances that it refused
to process since the May 31, 1995 merger of group 1
members of SEIU Local 3 with SEIU District 1199.”
3. Substitute the attached notice for that of the judge.

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT refuse to process grievances of group 1
employees above step 2, including arbitration, with SEIU
District 1199.
WE WILL NOT refuse to engage in joint negotiations
with SEIU District 1199 and OPEIU Local 514 for an
agreement to succeed the 1993–1996 agreement that ex-
pired December 16, 1996.
WE WILL NOT grant bargaining unit employees a unilat-
eral wage increase, without affording SEIU District 1199
and OPEIU Local 514 the opportunity to bargain on the
amount of the increase.
WE WILL NOT refuse to furnish SEIU District 1199 and
OPEIU Local 514 information that is relevant and neces-
sary to the Unions’ role as the joint representative of the
bargaining unit employees.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, on request, bargain for a new agreement with
SEIU District 1199 and OPEIU Local 514 as the joint
representative of group 1 and group 2 employees listed in
the agreement that expired December 16, 1996, and put
in writing and sign any agreement reached.
WE WILL, on request, bargain with SEIU District 1199
and OPEIU Local 514 on the amount of the wage in-
crease unilaterally announced on January 17, 1997.
WE WILL, on request, process all grievances that we re-
fused to process since the May 31, 1995 merger of group
1 members of SEIU Local 3 with SEIU District 1199.
WE WILL promptly furnish to SEIU District 1199 and
OPEIU Local 514 all bargaining information they re-
quested on March 10 and 25, 1997.

DEFIANCE HOSPITAL, INC.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 494
Susan E. Fernandez, Esq., for the General Counsel.
G. Roger King & Coleen Deep, Esqs. (Jones, Day, Reavis &
Pogue), of Columbus, Ohio, for the Respondent.
Michael Hunter, Esq., of Columbus, Ohio, for District 1199.
Timothy Gallagher, Esq., of Cleveland, Ohio, for OPEIU Local
514.
DECISION
STATEMENT OF THE CASE
MARION C. LADWIG, Administrative Law Judge. These cases
were tried in Defiance, Ohio, in the first trial on January 16–17,
1997, and a second trial on December 1, 1997. The charge in
Case 8–CA–27724 was filed September 20, 1995 (amended
December 15, 1995). After the first trial the charge in Case 8–
CA–28943 was filed April 9, 1997 (amended May 6, 1997),
and the charge in Case 8–CA–29131 was filed June 24, 1997.
The first complaint was issued September 12, 1996, and a con-
solidated complaint was issued July 30, 1997.
The cases involve changing union affiliations of two of the
three groups of health care employees at the Defiance Hospital
(the Hospital) in Defiance, Ohio. Group 1 comprised about 100
to 110 clerical, maintenance, and other noncertified, nonregis-
tered employees. Group 2 comprised about 75 to 77 LPNs and
other technical, licensed, or registered employees. Representa-
tion of the third group, the registered nurses, is not involved in
this proceeding.
In 1976 Service Employees Union Local No. 3 (Local 3) in
Toledo, Ohio, a building services (janitors) union affiliated
with Service Employees International Union (SEIU), organized
the Group 1 employees. Licensed Practical Nurse and Skilled
Hospital Employees Professional and Economic Security Pro-
gram (LPN-SHEP) organized the Group 2 employees. On May
6, 1976 the NLRB certified Local 3 and LPN-SHEP as the joint
representative.
In 1982 Group 2 employees voted to merge LPN-SHEP with
Office and Professional Employees International Union
(OPEIU). Without objection, the Hospital recognized OPEIU,
bargained with that International and Local 3, and executed the
1982–1985 joint agreement. In 1985 the Hospital voluntarily
bargained with OPEIU Local 514 (instead the International) as
the joint representative with Local 3 and executed the 1985–
1988 agreement.
In 1994 the SEIU placed Local 3 in emergency trusteeship
because of alleged “financial malpractice” by its Financial Sec-
retary Treasurer Richard Bowles “and approval by Local 3’s
Executive Board.” On August 3, 1994 the SEIU appointed a
hearing officer to conduct a hearing on August 18, 1994, to
determine whether a merger with SEIU Local 47 and District
1199 “would benefit the members of Local 3.”
SEIU Local 47, a Cleveland local, represented over 6000
employees in the building service and allied services industries
in the Cleveland and Columbus areas. SEIU District 1199 rep-
resented 8000 health care and social service workers in Ohio,
including about 1500 in the Toledo and surrounding counties.
In September 1994, before the hearing officer made her rec-
ommendations, Administrator Richard Sommer advised SEIU
Deputy Trustee Michael Salmon that “the Hospital would pre-
fer to deal with the more traditional sort of local union” rather
than with the “aggressive” District 1199. A day or so later Hu-
man Resource Director Linda Shaffer telephoned Salmon and
reiterated the Hospital’s preference for dealing with Local 47.
In early 1995 Shaffer called Group 1 Union Steward Patricia
Ray to the office and told her that “the Hospital would have no
problem if [the Group 1 employees] voted for Local 47, but
they did not want to deal with District 1199.”
On October 21, 1994, the SEIU hearing officer recom-
mended that Local 3 merge its 1050 building service and allied
services members into Local 47 and its 121 health care mem-
bers (the Hospital’s Group 1 employees and some nursing
home employees in Toledo) into District 1199. The SEIU’s
International Executive Board approved her recommendations
and on November 4, 1994 International President John
Sweeney directed the SEIU deputy trustee to conduct merger
votes. In early December 1994 the Local 3 building service
employees approved their merger with Local 47.
Some of the Local 3 members at the Hospital expressed a
preference for a separate SEIU local charter (which was not
available because such a small local was not considered by
SEIU to be “viable”), and their first vote about December 20 or
21 was 12 to 7 against their merging with District 1199. But
after discussions of the matter in four monthly meetings, Local
3 members met in two well-publicized meetings on May 31,
1995 and voted by secret ballot 29–0 in favor of their merging
with SEIU District 1199.
In response, the Hospital has refused to have any dealings
with SEIU District 1199, refusing to handle any Group 1 griev-
ances beyond step 2 and to engage in any negotiations in which
a staff representative of District 1199 is present. It has granted a
unilateral wage increase and has refused to furnish any re-
quested bargaining information either to District 1199 or
OPEIU Local 514.
Despite the Hospital’s having honored the 1982 vote of
Group 2 employees who merged LPN-SHEP with OPEIU
without any notice to or participation by Group 1 members of
Local 3, and despite the Supreme Court’s holding in NLRB v.
Financial Institution Employees (Seattle-First National), 475
U.S. 192, 209 (1986), that “the Board exceeded its authority
under the Act in requiring that nonunion employees be allowed
to vote for affiliation,” the Hospital makes the contention,
without any supporting precedent, that because Local 3 and
OPEIU Local 514 were the joint representative, due process
required that OPEIU members be allow to participate in the
vote on merging Local 3 members with SEIU District 1199.
None of the Local 514 members complained that they should
have been included in the vote.
Also without any supporting precedent, the Hospital con-
tends that there was a lack of due process because Local 3 em-
ployees were not given “an option to stay in Local 3 or go to
Local 47” and “the option to have OPEIU to be their sole repre-
sentative.”
The Hospital further contends that the merger was invalid
“due to the lack of continuity of representation” and other
“failures to provide due process to members of the bargaining
unit,” creating a question concerning representation. Finally it
asserts a 10(b) defense.
The primary issues are whether the Hospital, the Respon-
dent, unlawfully (a) refused to bargain with SEIU District 1199
and OPEIU Local 514, (b) granted the unit employees a unilat-
eral wage increase, and (c) refused to furnish District 1199 and
Local 514 requested bargaining information, violating Section
8(a)(5) and (1) of the National Labor Relations Act.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and the Hospital, I make the following
DEFIANCE HOSPITAL 495
FINDINGS OF FACT
I. JURISDICTION
The Hospital, a not-for-profit Ohio corporation, provides
health care services at its facility in Defiance, Ohio, where it
annually derives over $250,000 in gross revenues and receives
goods valued over $5000 directly from outside the State. It
admits and I find that it is an employer engaged in commerce
within the meaning of Section 2(2), (6), (7), and (14) of the
Act and that SEIU District 1199 and OPEIU Local 514 are
labor organizations within the meaning of Section 2(5) of the
Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Joint and Separate Representation
In 1976 SEIU Local 3, a building services (janitors) local in
Toledo, Ohio, organized the group 1 employees, and the inde-
pendent LPN-SHEP organized the group 2 employees at the
Hospital in Defiance, Ohio. On May 6, 1976 the Board in Case
8–RC–10015 certified Local 3 and LPN-SHEP as the joint
representative of these employees. Group 1 employees are
clerical, maintenance, and other noncertified, nonregistered
employees. Group 2 employees are LPNs (licensed practical
nurses) and other technical, licensed, or registered employees
(but not registered nurses represented by the Ohio Nurses As-
sociation). (Tr. 23, 221, 271, 298, 355, 689, and 694; G.C.
Exhs. 5 p. 49, 6.)
Since that date, groups 1 and 2 employees have been repre-
sented both jointly and separately by the two unions and their
successors.
From 1976 until 1982, Local 3 represented the employees
jointly with LPN-SHEP, negotiating the 1976–1979 and 1979–
1982 agreements with the Hospital (R. Exhs. 3 and 4). In 1982
employees in group 2—without notice to or participation by
Local 3 members—voted to merge LPN-SHEP with Office and
Professional Employees International Union (OPEIU). The
Hospital recognized OPEIU as the joint representative with
Local 3 and negotiated the 1982–1985 agreement with them.
(Tr. 198–200, 431, and 681–682; R. Exh. 5).
Sometime after the 1982 negotiations the Hospital voluntar-
ily recognized OPEIU Local 514 instead of the OPEIU Interna-
tional. Since then, Locals 3 and 514 have jointly negotiated the
1985–1988, 1988–1991, 1991–1993, and 1993–1996 agree-
ments. (Tr. 200, 384, and 438; R. Exhs. 6–8; G.C. Exh. 5).
Meanwhile, the 100 to 110 Local 3 members in Group 1 and
the 75 to 77 Local 514 members in Group 2 (Tr. 23, 158, and
300) were represented separately by their own elected stewards
and, in the case of Local 514, by their own Local officers at the
Hospital. Longtime Local 3 steward Patricia Ray and six other
stewards represented the group 1 employees in handling the
day-to-day issues of contract administration and their griev-
ances. Without any participation by OPEIU Local 514, these
stewards decided if a group 1 grievance was to be referred to
Local 3 for arbitration. Local 3 bears the cost of any arbitration
case it loses. (Tr. 34, 194–197, 214–216, 236–238, and 322.)
When, however, members of both unions elected Ray to be
the chief steward in August 1995 (the third month after their
merger with District 1199), she began sitting in on step-3 hear-
ings of Local 514 grievances. She processes a Local 514 griev-
ance at a lower level only when necessary, in the absence of the
Local 514 steward. (Tr. 195, 253–254, 257, and 268–269.)
Group 1 members of Local 3 separately elected their own
members to the negotiating committee. Their Local 3 staff rep-
resentative, Richard Bowles, and the OPEIU staff representa-
tive were the chief spokesmen in negotiations with the Hospi-
tal. Separate ratification by each union was required. (Tr. 227–
228, 275, and 436–438).
Under the union-shop and dues-checkoff provisions in the
agreements, group 1 employees were dues-paying members of
SEIU Local 3 and, since the May 31, 1995 merger discussed
below, are dues-paying members of SEIU District 1199. The
Hospital continued to send a single check to Local 3 for the
dues checked off for section 1 employees ($9 each pay period)
and for section 2 employees ($7.72 each pay period). (Tr. 457–
459, 476–477, 483, 508–509, 662, 674–675, 678, and 702–705;
R. Exh. 27; G.C. Exh. 31.) In this way the Hospital has indi-
rectly turned over the Section 1 dues to District 1199 since the
merger.
B. Local 3 Placed Under Trusteeship
On March 9, 1994, the SEIU placed Local 3 (its building
services local in Toledo) in emergency trusteeship because of
alleged “financial malpractice” by its Financial Secretary-
Treasurer Richard Bowles “and approval by Local’s Executive
Board” (Tr. 20–21; G.C. Exh. 7). On August 3, 1994 the SEIU
appointed a hearing officer to conduct a hearing on August 18,
1994 to determine whether a merger with SEIU Local 47 and
District 1199 “would benefit the members of Local 3” (G.C.
Exh. 10).
As testified at that August 18 hearing, SEIU Local 47 is a
Cleveland local that “represents over 6000 employees in the
building service and allied services industries in the Cleveland
and Columbus areas.” As further testified, SEIU District 1199
“represents 8000 health care and social service workers” in
Ohio, including about 1500 in “Toledo and surrounding coun-
ties.” (G.C. Exh. 12 pp. 3–4.)
In September 1994, before the hearing officer made her rec-
ommendations, SEIU Deputy Trustee Michael Salmon had a
courtesy meeting with Administrator Richard Sommer and
Human Resources Director Linda Shaffer. In this meeting
Sommer advised Salmon that “the Hospital would prefer to deal
with the more traditional sort of local union” rather than with
the “aggressive” District 1199. (Tr. 17, 51–54.)
A day or so later Shaffer telephoned Salmon and reiterated
the Hospital’s preference for dealing with Local 47. Salmon, in
turn, reiterated SEIU’s position that “this was an internal local
union matter.” (Tr. 54–55.) On September 24, 1994, Salmon
repeated the SEIU’s position in a letter to Shaffer, stating that
“Our meeting with you was a courtesy. . . to promote an open
and honest relationship between the Hospital and the Union,”
but that the merger decision “is purely an internal union matter.
. . . for the good of Local 3’s members.” (G.C. Exh. 11.)
Salmon concluded the letter by adding: “While I am aware
that the Hospital or its attorney may feel you have a stake in
this matter, any attempt by the Hospital’s administration or
other nonunion staff to influence our members regarding this
decision will be considered interference in internal union af-
fairs.” Nevertheless, in early 1995 Shaffer called group 1 Stew-
ard Patricia Ray to the office and told her that “the Hospital
would have no problem if [the group 1 employees] voted for
Local 47, but they did not want to deal with District 1199” (Tr.
200).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 496
On October 21, 1994, the SEIU hearing officer cited
Salmon’s report that Local 3 “is virtually insolvent and that it
would take several years to train members to assume leadership
roles in the Local.” She recommended that Local 3 merge its
1050 building service and allied services members into SEIU
Local 47 and its 121 health care members (the Hospital’s
Group 1 employees and some nursing home employees in
Toledo) into SEIU District 1199. (G.C. Exh. 12, p. 4 of at-
tached report.)
The hearing officer explained that she made this recommen-
dation because of “Local 47’s dominance in the building ser-
vice industry” and District 1199’s “dominance in health care
field in Ohio.”
The SEIU’s International executive board approved her rec-
ommendations. On November 4, 1994, International President
John Sweeney directed “Deputy Trustee Michael Salmon to
conduct a merger vote among the [Local 3] members employed
at Defiance Hospital and Glendale Nursing Home with respect
to [District 1199] and among the members in the remaining
bargaining units with respect to Local 47.” (G.C. Exh. 12, p. 1).
In early December 1994 the building service members of Local
3 approved their merger with Local 47 (Tr. 62, 174; G.C. Exh.
14).
When Local 3 members at the Hospital first voted on the
merger about December 20 or 21, some of them expressed a
preference for a separate SEIU local charter (which was not
available because such a small local was not considered by
SEIU to be “viable”). The first vote was 12–7 against their
merger with District 1199. (Tr. 111–112, 130, 156, 187, 192,
259–262, 266, 537–539, and 576.)
On January 13, 1995, Salmon notified the Hospital that SEIU
Field Representative Arnold Maurer, who had been appointed
by the trustee to serve as SEIU’s staff representative there, “has
accepted a position with” SEIU Local 47. “I am appointing Ms.
Karen Gilliam to succeed Mr. Maurer in representation mat-
ters.” (G.C. Exhs. 8, 13; Tr. 311–312.)
Meanwhile, during the Local 3 trusteeship, the group 1 stew-
ards continued to handle the day-to-day issues of contract ad-
ministration and grievances at the Hospital (Tr. 231, 322). On
March 1, 1995, Gilliam wrote a letter to Linda Shaffer about a
contract issue. She signed her name as organizer of SEIU Dis-
trict 1199. (G.C. Exh. 21.) On March 13, 1995, Shaffer re-
sponded stating, before discussing the merits of the issue (G.C.
Exh. 22):

Prior to responding to the Maintenance Worker and House-
keeping issues you raised, I would like to clarify the Hospi-
tal’s position concerning District 1199. Defiance Hospital has
a bargaining unit agreement with Service Employees Union
No. 3 and Office and Professional Employees International
Union Local 514. All union dues for these groups are for-
warded to SEIU Local No. 3, 111 S. Byrne Road, Suite A,
Toledo, Ohio 43615. There is no mention in the bargaining
agreement of District 1199 representing any employees of
Defiance Hospital. Are you acting on behalf of SEIU or some
other organization?

Gilliam answered Shaffer’s question on April 14. After dis-
cussing the contract issue she wrote (G.C. Exh. 23):

As to the issue of appropriate Union representative, as
you know by way of a letter sent to you dated 1/13/95
from Mike Salmon Deputy Trustee, SEIU, Local 3, I have
been assigned to represent Defiance Hospital SEIU bar-
gaining unit members. I believe this issue is very clear I
am the representative.

On April 27, 1995, Shaffer responded (G.C. Exh. 24):

The Hospital is agreeable to meet to discuss the Main-
tenance Worker job description with . . . the appropriate
representative of the SEIU Local No. 3 with whom Defi-
ance Hospital has a contract agreement. Pursuant to the
advice of legal counsel, Hospital management is not in
agreement to meet with a representative of District 1199 as
it is not the elected and/or certified union to represent em-
ployees of Defiance Hospital.
Any further questions you have concerning this issue
should be directed to G. Roger King, legal counsel for De-
fiance Hospital. . . .
Until this issue is resolved to the Hospital’s satisfac-
tion, grievance and/or conciliation meetings will not be
held.

(The SEIU did not file a charge alleging that the Hospital
unlawful refused to bargain by refusing to deal with its staff
representative in processing grievances before the group 1 em-
ployees’ May 31, 1995 merger with District 1199, discussed
below.)
The Hospital contends in its 2/20/97 brief (at 1 fn. 1 and at
25) that “Since the beginning of 1995, the Hospital has made it
clear that it did not recognize District 1199 as the certified rep-
resentative for any of its employees,” that the original Section
8(a)(5) refusal to bargain charge filed by District 1199 in this
proceeding on September 20 was untimely, and “Therefore, the
complaint against the Hospital is barred by Section 10(b).”
The complaint, however, does not allege that the Hospital re-
fused to bargain with District 1199 outside the 6-month limita-
tion period. It alleges that the Hospital unlawfully refused to
bargain with District 1199 “[s]ince about May 31, 1995” (the
date of the merger). That was less than 4 months before the
September 20 charge.
I reject the 10(b) defense as frivolous.
C. Merger with District 1199 and Refusal to Bargain
Despite the Hospital’s opposition to dealing with the “ag-
gressive” SEIU District 1199, Group 1 health care members of
SEIU Local 3 met in two well-publicized meetings on May 31,
1995 and voted by secret ballot 29–0 in favor of their merging
with District 1199, as discussed below.
On June 1, 1995, SEIU Deputy Trustee Salmon notified the
Hospital of the unanimous vote and stated, “We expect that the
Hospital will continue to honor the current collective-
bargaining agreement and resume its obligation to process
grievances.” (G.C. Exh. 16.)
On June 9, 1995, Counsel Roger King gave the Hospital’s
misleading response, at least implying that Local 3 was jointly
certified with OPEIU Local 514. Although Local 3 was jointly
certified instead with the independent LPN-SHEP, not with
OPEIU whom the Hospital next recognized, or with OPEIU
Local 514 whom it later recognized, King stated in his letter to
Salmon, in part (G.C. Exh. 19):

[T]he Hospital has a collective-bargaining agreement with a
jointly-certified bargaining unit consisting of . . . Local 3 and
[OPEIU] Local 514. Such joint certification does not contem-
plate or provide for single certification or recognition of any
labor organization. In addition, the collective-bargaining
agreement, as a result of such joint certification, does not
DEFIANCE HOSPITAL 497
permit any party in such agreement to assign their rights to a
third party.

I note that the Hospital falsely represented in its February 20,
1997 brief (at 18) that Local 3 was “jointly certified with LPN-
SHEP/OPEIU in 1976” and falsely represented in its January 8,
1998, brief (at 19) that it has negotiated all the collective-
bargaining agreements “jointly with Local 3 and OPEIU,” even
though its 1976–1979 and 1979–1982 agreements were negoti-
ated with Local 3 and LPN-SHEP.
Since Counsel King’s June 9, 1995 letter, the Hospital has
refused to recognize District 1199 as a representative of its
group 1 employees and has refused to process group 1 griev-
ances with District 1199 above step 2. As an example, Admin-
istrator Sommer stated in a memo dated March 4, 1996, “I am
returning the grievance to you at this time because of the lack
of an SEIU business agent for representation of your group.
The Hospital has not recognized #1199 as an agent for your
group.” (Tr. 231, 680, 684–686; G.C. Exh. 27.)
Not recognizing District 1199, the Hospital since September
24, 1996, has refused to engage in joint negotiations with Dis-
trict 1199 and OPEIU Local 514 for a new agreement to suc-
ceed the 1993–1996 agreement that expired on December 16,
1996. It extended the terms of the expired agreement, but on
January 17, 1997 (the last day of the first trial on January 16–
17), it announced its unilateral decision to grant a 3-percent
wage increase, without any bargaining on the amount of the
increase. (Tr. 488–489, 560–564, 585, 614–623, 639–640, 658–
660, 681, 687–689, 694–695, and 697–698; G.C. Exhs. 28, 33–
35, 37; R. Exhs. 20–22.)
Since then the Hospital has refused to furnish necessary and
relevant bargaining information requested by District 1199 on
March 10, 1997, and by Local 514 on March 25, 1997. On June
6, 1997, it notified the OPEIU International representative that
it was willing to commence negotiations with her “as the Chief
Spokesperson for the entire unit” on the condition that “No
District 1199 Representatives would be present at the table.”
The offer was rejected. (Tr. 567–571, 598, 602, 616–623, 628–
630, 644–645, and 664–665; G.C. Exhs. 36–40.)
D. The Hospital’s Defenses
Because of contrary legal precedents foreclosing such a de-
fense, the Hospital does not defend its actions in refusing to
honor the unanimous 29–0 vote to merge the health care em-
ployees with SEIU District 1199 by contending that it opposes
dealing with the “aggressive” District 1199.
As the Board held in Sullivan Bros. Printers, 317 NLRB
561, 562–563 (1995), the Supreme Court recognized in NLRB
v. Food & Commercial Workers Local 1182 (Seattle-First Na-
tional Bank), 475 U.S. 192, 199 fn. 5 (1986) that “increased
financial support and bargaining power” are “ordinary, valid
reasons for affiliations and mergers.” The Board then held,
citing Insulfab Plastics, 274 NLRB 817, 823 (1985):

In sum, as we have stated, “[t]he notion that an organization
somehow loses its identity and becomes transformed . . . be-
cause it acquires more clout and becomes better able to do its
job is an absurdity and one which flies squarely in the face of
a clearly stated congressional objective.”

In the absence of any legal justification for defending its re-
fusal to have any dealings with the “aggressive” SEIU District
1199, evidently because of District 1199’s anticipated increased
bargaining power, the Hospital instead asserts various other
defenses that I find have no merit.
1. Nonmembers not voting on merger
The Supreme Court held in Seattle-First, above, 475 U.S. at
200, 209 (1986), that “the Board exceeded its authority under
the Act in requiring that nonunion employees be allowed to
vote for affiliation” and that “as long as continuity of represen-
tation and due process were satisfied, affiliation was considered
an internal matter [emphasis added] that did not affect the un-
ion’s status as the employees’ bargaining representative, and
the employer was obligated to continue bargaining with the
recognized union.”
Yet the Hospital contends in its February 20, 1997 brief (at
2–3), without any supporting precedent, that “As members of
the jointly certified party, OPEIU employees in the bargaining
unit should have been permitted to vote on the merger because
it clearly affects the overall identity of the certified representa-
tive and, in turn, the manner in which members will be repre-
sented in dealings with the Hospital.”
In the absence of any supporting evidence to support this
contention, the Hospital in its February 20, 1997 brief (at 24 fn.
14) goes outside the record and asserts that OPEIU “may not
want to be jointly certified with District 1199” and “sees Dis-
trict 1199 as a substantially different entity.”
Also outside the record and contrary to the credited testi-
mony of SEIU Representative Gilliam and Steward Ray that
none of the Local 514 members objected to the merger vote or
being excluded from the vote (Tr. 210, 330), the Hospital as-
serts in the brief (at 24) that it “is also aware that OPEIU did
not originally favor the merger and that many employees in the
bargaining unit are unhappy with the prospect of being jointly
represented by District 1199.”
Further going outside the record, the Hospital asserts (at 8 fn.
6): “Indeed, shortly after the vote, the Hospital received infor-
mation suggesting that OPEIU and the OPEIU members in the
bargaining unit were opposed to being represented by District
1199, and would have voted against the merger had they been
given the opportunity.”
This distortion of the record does not provide any merit to
the contention.
Based on the Supreme Court’s holding in Seattle-First that
“the Board exceeded its authority under the Act in requiring
that nonunion employees be allowed to vote for affiliation” and
in view of the precedent the Hospital itself set in 1982 by rec-
ognizing and bargaining with OPEIU—even though members
of Local 3, which was jointly certified with the independent
LPN-SHEP, were not given notice and did not participate in the
vote to merge LPN-SHEP with OPEIU—I find that Local 3
was not required to permit OPEIU members, nonmembers of
Local 3, to participate in the merger vote.
I find that the merger of the Group 1 health care members of
SEIU Local 3 with SEIU District 1199 was an internal union
matter. I reject this nonmembers-not-voting defense for the
Hospital’s refusal to recognize and bargain with District 1199.
2. Lack of continuity of representation
The Hospital’s contention in its February 20, 1997 brief (at
15), that the merger with SEIU District 1199 is “invalid be-
cause of a lack of continuity between the pre- and post-merger
representative,” is lacking in merit.
There was no change in the representation at the Hospital
during the trusteeship of Local 3, except for the replacement of
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 498
Richard Bowles in Local 3’s Toledo office and the servicing of
the group 1 employees by Arnold Maurer (later Karen Gilliam)
and Michael Salmon (Tr. 34, 60–61, 67, 231, and 248–249).
Bowles, as Local 3’s staff representative, had been the only
Local 3 officer who had any contact with the group 1 employ-
ees (Tr. 218).
Since the May 31, 1995 merger of the group 1 employees
with District 1199, there has been very little change in the rep-
resentation of these health care employees, apart from the Hos-
pital’s refusal to deal with any staff representative of District
1199.
The group 1 elected stewards, Patricia Ray and others, still
handle the day-to-day issues of contract administration and
employee grievances. The group 1 employees still have their
own elected members on the negotiating committee, which has
met several times since the merger and has drawn up proposals
for upcoming negotiations. The group 1 employees must sepa-
rately ratify any joint agreement before it become effective.
District 1199 staff representatives have inquired about how the
contract negotiations were conducted and have indicated no
change. (Tr. 215, 217, 226–229, 286, 324–325, 566–567, and
579.)
The Local 3 health care members at the Hospital were auto-
matically accepted as District 1199 members, without filling
out new applications or paying any initiation fees. They still
pay the $9 biweekly dues, which are checked off by the Hospi-
tal and turned over (indirectly) to District 1199. (Tr. 214, 230.)
Virtually the only change in the representation at the Hospi-
tal is the identity of the staff representatives and the assistance
that District 1199 would provide in negotiations, grievance
handling above step 2, and arbitration (Tr. 243, 245—252, 283,
286–287, 295, 437–438, 613, and 680).
The stewards’ title has been changed to delegates, but they
still referred to themselves as stewards (Tr. 217). The stewards
were not permitted to attend Local 3 executive board meetings
but, after Ray was elected chief steward, she is a member of the
District 1199 executive board. The stewards are permitted to
attend the District 1199 general assembly meetings (Tr. 222–
224, 268, and 559).
The Hospital contends in its February 20, 1997 brief (at 19–
20) that “there is a striking resemblance between the situation
that was presented to the Board in Quality Inn Waikiki (Wai-
kiki), 297 NLRB 497 (1989), and the factual situation that pres-
ently exists at the Hospital” and that “The parallels between
Waikiki and the instant action are simply undeniable.” To the
contrary, that case is clearly distinguishable on its facts.
In Waikiki the Board held (297 NLRB at 497 fn. 1) that the
changes “under the trusteeship” were extensive and that “the
trusteeship and subsequent merger created sufficiently dramatic
changes that altered the identity of the represented organization
to the extent that it raised a question concerning representa-
tion.”
In that case (297 NLRB at 497 fn. 1, 498–500 fn. 10) there
were no union members at the Quality Inn Waikiki hotel from
December 1983, when Local 555 (a “fully functioning” local
union representing employees at class B hotels) was placed
under trusteeship, and May 1985 when a vote was held on
merging Local 555 with Local 5 (a class A hotel union). During
the year and a half of the trusteeship before the merger vote, the
Local 5 secretary-treasurer was the Local 555 trustee. He and
his administrative assistant conducted all of Local 555’s busi-
ness and Local 5’s business agents serviced the Local 555 bar-
gaining units.
As pointed out in the General Counsel’s February 20, 1997
brief, the administrative law judge concluded in Waikiki that
the sole purpose of the trusteeship was to facilitate the merger.
“Unlike the present case, the post-merger labor organization
was not in the same dire financial circumstances due to the
criminal acts of the local leadership. . . . The trusteeship im-
posed in the present matter was obviously for good cause pre-
cipitated by the criminal acts of a Local officer and years of
neglect of membership”—referring to Bowles’ 1-year prison
sentence, grievances over 6 years old not being processed, etc.
(Tr. 120–121).
Moreover in Waikiki (197 NLRB at 500 fn. 10), Local 555
not only had no members at the Quality Inn hotel, but it had no
contract with Quality Inn and Quality Inn never recognized it.
As nonmembers of Local 555, the hotel employees were not
permitted to vote in the merger election.
In sharp contrast, Local 3 had between 100 and 110 members
in group 1 at the Hospital. By the time of the May 31, 1995
merger, when these members voted 29–0 in favor of their merg-
ing with District 1199, their stewards had represented them at
the Hospital for 19 years (since the joint 1976 joint certifica-
tion) in handling the day-to-day issues of contract administra-
tion and grievances. As held in News/Sun Sentinel Co. v. NLRB,
890 F.2d 430, 432 (D.C. Cir. 1989), ”Continuity [of representa-
tion] is evidenced by the maintenance of traces of a preexisting
identity and the retention of autonomy over the day-to-day
administration of bargaining agreements.”
Thus, unlike Waikiki, which involved the merger of one local
into another and the representation of nonmember employees in
a hotel that had not recognized the union, the present case in-
volves continuity of representation of employees who have
been represented by their own stewards for many years. That
representation continued both after the March 9, 1994 trustee-
ship of Local 3 and after the May 31, 1995 merger of these
health care employees with District 1199.
As found, there was no change in the representation at the
Hospital during the trusteeship, except for the replacement of
Richard Bowles, Local 3’s staff representative. After the
merger, virtually the only change in the representation of these
health care employees at the Hospital has been the identity of
the staff representatives and the assistance that District 1199
(with “dominance in health care field in Ohio”) would provide
in negotiations, grievance handling above step 2, and arbitra-
tion.
The Hospital also contends in its February 20, 1997 brief (at
18) that the greater membership of District 1199 results in dis-
continuity of representation. The Board, however, recently
rejected such a contention in CPS Chemical Co., 324 NLRB
1021 (1997), involving the affiliation of a 30-member inde-
pendent association with a 550-member local of the 85,000-
member OCAW International Union. The Board held: “We also
agree with the judge’s finding that contracts will be negotiated
in much the same way under [the local] as they were under the
[association], but with greater expertise as a result of the par-
ticipation of an OCAW International Representative [emphasis
added].”
The Board then cited the Supreme Court’s holding in Seattle-
First, above, 475 U.S. at 199 fn. 5:

A local union may seek affiliate with a larger organization for
a variety of reasons. The larger organization may provide bar-
DEFIANCE HOSPITAL 499
gaining expertise or financial support, or may compensate for
a lack of leadership within the local union. . . . The Board has
recognized that a union “must remain largely unfettered in its
organizational quest for financial stability and aid in the nego-
tiating process.”

The Hospital points out in its February 20, 1997 brief (at 18)
that Local 3 was headquartered in Toledo, only 55 miles from
Defiance, whereas District 1199 is headquartered in Columbus,
about 150 miles from the Hospital. It ignores the fact that at the
time of trusteeship, District 1199 represented about 1500 health
care and social service workers in Toledo and surrounding
counties. The office of the OPEIU staff representative is in
Fredericktown, Pennsylvania, about 320 miles from Defiance,
Ohio (Tr. 613). Local 47 has opened an office in Toledo (Tr.
576), but there is no evidence that any group 1 employee has
ever attended an out-of-town union meeting.
The present case involves a group of health care employees
who continued to represent themselves through their elected
stewards after the merger. By a unanimous 29–0 vote to merge
with District 1199, the dominant SEIU health care union in the
State, these SEIU Local 3 members—after the removal of their
Local 3 staff representative Bowles and the breakup of Local
3—were evidently seeking assistance in their representation as
before, for increased bargaining power in negotiations and ex-
pertise in handling unresolved grievances and arbitration. These
were “ordinary, valid reasons for affiliations and mergers.”
Sullivan Bros. Printers, above, 317 NLRB at 562–563.
Citing the Supreme Court’s holding in Seattle-First, 475
U.S. at 206, the Board held in May Department Stores Co., 289
NLRB 661, 665 (1988), enfd. 897 F.2d 221 (7th Cir. 1990), that
the general test for determining continuity of representative is
whether the affiliation of a bargaining representative with an-
other labor organization produces a change that is “sufficiently
dramatic to alter the union’s identity.” The Board has consis-
tently held that a respondent has the burden of proof that conti-
nuity of representative was lost as a result of a merger or af-
filiation. CPS Chemical, supra at fn. 7.
I find that there was no dramatic change in the representation
of the Group 1 health care members of SEIU Local 3 after their
May 31, 1995 merger with SEIU District 1199. I therefore find
that there was continuity in their representation at the Hospital.
3. Lack of due process
On May 31, 1995, after group 1 members of Local 3 dis-
cussed the proposed merger with District 1199 at 4 monthly
membership meetings, SEIU Deputy Trustee Michael Salmon
held a well-publicized merger election. In meetings from 1 to 2
p.m. and from 7 to 8 p.m. the members voted by secret ballot.
The ballot read (G.C. Exh. 26):

____ I approve of the merger of The Health Care
members of Local #3 with District 1199.
____ I do not approve of the merger of The Health
Care members of Local #3 with District 1199.

The vote was 29–0 in favor of the merger (Tr. 67, 86, and
206). Although there were no employee complaints about the
vote (Tr. 210, 330), the Hospital contends in its brief (at 3) that
“the merger is invalid” for “a failure to provide due process to
members in the bargaining unit.”
The Hospital does not fault the great care Salmon took (Tr.
70–81, 85–86, 155, 160, 172–173, 201–206, and 378–379) in
conducting a fair election, with two exceptions.
First, it distorts the record by contending in its February 20,
1997 brief (at 22) that “the Deputy Trustee did not provide
sufficient time for employee questions and discussion prior to
the vote.” To the contrary—besides the discussions of the pro-
posed merger at four monthly membership meetings before the
merger election—Salmon asked for questions at each of the two
voting sessions. He answered general questions about the
merger and District 1199 Ohio Director David Regan answered
questions relating to District 1199. After all the questions were
answered, before handing out the ballots, Salmon asked: “Does
anybody have any more questions? Is there anything else any-
body’s got to say? And if you don’t, then we’re going to go
ahead and vote.” (Tr. 75–77, 85, 154–156, 160, and 204–205.)
There is no contrary evidence on which the Hospital could rely
in making the contention of insufficient time.
Second, the Hospital contends (at 22) that the secret ballot
process was “tainted” because Salmon did not provide voting
booths and the employees instead voted at tables out in the
open. The undisputed evidence is that the employees were
“spread out” at four large tables and that Salmon did not ob-
serve any voters looking at someone else’s ballot. Neither he
nor Steward Ray, acting as an election observer at the 7 p.m.
merger meeting, saw any irregularities in the voting. (Tr. 72–
73, 78, 151–155, and 201–204.) The Board has long held that
the failure to provide a voting booth does not invalidate a
merger vote in the absence of evidence that individuals ob-
served others voting or that ballots had been tampered with.
Sullivan Bros. Printers, above, 317 NLRB at 563 fn. 5.
Regarding notice of the May 31, 1995 election, the Hospital
concedes in its February 20, 1997 brief (at 7, 22) that “Notice
of the vote was sent [by mail] to the Local 3 members on May
16,” but cites Salmon’s testimony that “Several of the notices
were returned unopened.” It ignores the undisputed evidence
that for about 2 weeks before the election, Steward Ray had a
copy of the notice posted on the bulletin board alongside her
note, handwritten with a marker, stating “SEIU,” a “Very Im-
portant Union Meeting,” the date, time, and place, and her mes-
sage, “Please Attend” (Tr. 69, 138–139, and 208–210; G.C.
Exh. 15).
Even in the absence of a notice being mailed to the member-
ship, the court held in News/Sun Sentinel, above, 890 F.2d 430,
433: “An announcement on the composing room bulletin board
and two Local 895 meetings afforded the Company’s employ-
ees adequate notice of the [merger] election.” I find that ade-
quate notice was given.
The Hospital contends in the brief (at 7, 21) that there was
“the utter lack of due process” because “a copy of District
1199’s Bylaws or Constitution was not mailed to Local 3 mem-
bers in advance of the vote.” Copies of the bylaws as well as
other literature about District 1199 were made available at the
February membership meeting and each of the members at the
meeting received a copy of the bylaws. There is no evidence
that any other Local 3 employee had expressed any interest in
seeing or having a copy of the bylaws. (Tr. 322–323, and 361–
363; G.C. Exh. 4.)
Moreover, the Local 3 membership was given repeated op-
portunities to learn the issues involved in the proposed merger.
At the January and April membership meetings, SEIU Deputy
Trustee Salmon, District 1199 Ohio Director Regan, and SEIU
Representative Gilliam (replacing Arnold Maurer) were avail-
able to answer their questions. At the February and March
meeting, one or more of them were present to answer the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 500
merger questions. (Tr. 206–207, 262–267, 311–314, 323–326,
358–362, 366–367, and 372.)
The Hospital’s principal contention regarding lack of due
process, however, was the SEIU’s failure not only to permit
OPEIU members to vote in the Local 3 members’ merger elec-
tion, as discussed above, but also SEIU’s failure to offer the
Local 3 employees the alternative of voting for one of the un-
ions the Hospital favored for representing the employees.
At the trial the Hospital took the following position (Tr.
108):

MR. KING: Yes. With respect to due process, it’s our
theory of the case that the Defiance Hospital employees in
Local 3 were not given due process, because they were not
given the option . . . to stay in Local 3 or go to Local 47.

In response to the Local 3 or Local 47 option theory, the
General Counsel contends (brief at 39–40) that this is “an inter-
nal union matter” and that the SEIU followed its own Constitu-
tion and Bylaws (G.C. Exh. 2, art. 13, sec. 3, p. 26) in deciding
that in the best interest of the Local 3 membership, the janitors
(building service workers) should vote on whether to merge
with Local 47 and the health care members, on merging with
District 1199. To accept the Hospital’s contention “would be
tantamount to allowing [the Hospital] to reach in and rewrite
the International’s Constitution and Bylaws.”
Local 3 no longer exists (Tr. 160). All Local 3’s officers had
been removed over a year before the Hospital’s Group 1 health
care members of SEIU Local 3 voted to merge with SEIU Dis-
trict 1199 on May 31, 1995 (G.C. Exh. 8), and the bulk of its
membership (the building service employees) had merged with
Local 47 about 6 months before. SEIU Deputy Trustee Salmon
credibly testified that Local 47 was “content to take the build-
ing service workers” and was “no longer interested in repre-
senting people at Defiance Hospital” (Tr. 538).
In the absence of any complaint by Local 3 members, I find
it obvious that the Hospital was concerned with its own inter-
ests, not the due process rights of the employees. As the Su-
preme Court held in Seattle-First, above, 475 U.S. at 209, “To
allow employers to rely on employees’ rights in refusing to
bargain with the formally designated union is not conducive to
[industrial peace].” Brooks v. NLRB, 348 U.S. 96, 103 (1954).
The Hospital further contends in the brief (at 6): “Likewise,
bargaining unit members were not given the option to have
OPEIU be their sole representative.”
The Hospital offers no supporting precedent for holding that
an International, when giving members of one affiliate an op-
portunity to merge with another affiliate, is required to give the
members the option of abandoning the International. In the
absence of a question concerning representation, I reject the
defense that due process required an option of voting for sole
representation by OPEIU.
The Hospital, citing Seattle-First, 475 U.S. at 199, in the
brief (at 20), points out that “Due process typically involves
providing union members (i) notice of the election and meet-
ings regarding the proposed merger, (ii) adequate opportunity
for discussion, and (iii) a right to vote, with reasonable precau-
tions to maintain ballot secrecy.” As found, SEIU provided (i)
proper notice and (iii) a secret-ballot election.
Concerning (ii), “adequate opportunity for discussion,” Lo-
cal 3’s membership at the Hospital was given repeated oppor-
tunities to learn the issues involved in the proposed merger, at
four monthly membership meetings and at the merger election
before the voting. The Hospital, however, contends in its brief
(at 7) that this amounted to District 1199 being “thrust upon”
the Local 3 employees at the Hospital.
To the contrary, the unanimous 29–0 vote indicates that on
learning the prospective benefits from merging with the domi-
nant SEIU health care union in the State—contrary to the Hos-
pital’s preference for a less aggressive union—the Local 3
membership was accepting the SEIU’s determination that the
proposed merger would be to their best interest.
I reject the Hospital’s defense that the Local 3 members were
deprived of due process.
E. Concluding Findings
Having found that the requirements of continuity of repre-
sentation and due process were met, I find that the May 31,
1995 merger of the Group 1 health care members of SEIU Lo-
cal 3 with SEIU District 1199 was a valid merger and that,
contrary to the Hospital’s contention in its February 20, 1997
brief (at 3), the merger did not create a question concerning
representation.
I therefore find that the Hospital was obligated to recognize
and bargain with District 1199 as a joint representative with
OPEIU Local 514 of the bargaining unit of groups 1 and 2 em-
ployees and to recognize and bargain with a staff representative
of District 1199, in place of the Local 3 staff representative
before the trusteeship of Local 3, in assisting the group 1 stew-
ards in negotiations, grievance handling above step 2, and arbi-
tration.
Accordingly I find that the Hospital has unlawfully refused
to bargain in violation of Section 8(a)(5) and (1) of the Act by
engaging in the following conduct.

1. Refusing since June 9,1995 to recognize and bargain with
SEIU District 1199 in processing grievances of group 1 em-
ployees above step 2, including arbitration.
2. Refusing since September 24, 1996, to engage in joint ne-
gotiations with SEIU District 1199 and OPEIU Local 514 for a
collective-bargaining agreement to succeed the 1993–1996
agreement that expired December 16, 1996.
3. Announcing on January 17, 1997, its unilateral decision to
grant a wage increase for groups 1 and 2 bargaining unit em-
ployees, without affording SEIU District 1199 and OPEIU
Local 514 the opportunity to bargain on the amount of the in-
crease.
4. Refusing since March 14, 1997, to furnish bargaining in-
formation, as requested by SEIU District 1199 on March 10,
1997 and by OPEIU Local 514 on March 25, 1997. The Hospi-
tal does not dispute the allegation that the requested informa-
tion was necessary and relevant for bargaining.
CONCLUSIONS OF LAW
1. By refusing since June 9, 1995, to recognize and bargain
with SEIU District 1199 in processing grievances of group 1
employees above step 2, including arbitration, the Hospital has
engaged in unfair labor practices affecting commerce within the
meaning of Section 8(a)(5) and (1) and Section 2(2), (6), (7),
and (14) of the Act.
2. By refusing since September 24, 1996, to engage in nego-
tiations for a new agreement with SEIU District 1199 and
OPEIU Local 514 as the joint representative of the bargaining
unit of group 1 and group 2 employees listed in their 1993–
1996 agreement, which expired on December 16, 1996, the
Hospital has violated Section 8(a)(5) and (1).
DEFIANCE HOSPITAL 501
3. By announcing on January 17, 1997, its unilateral decision
to grant a wage increase for the bargaining unit employees,
without affording SEIU District 1199 and OPEIU the opportu-
nity to bargain on the amount of the increase, the Hospital vio-
lated Section 8(a)(5) and (1).
4. By refusing since March 14, 1997, to furnish bargaining
information, as requested by District 1199 on March 10, 1997,
and by OPEIU Local 514 on March 25, 1997, the Hospital has
violated Section 8(a)(5) and (1).
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended1
ORDER
The Respondent, Defiance Hospital, Inc., Defiance, Ohio, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to process grievances of group 1 employees
above step 2, including arbitration, with SEIU District 1199.
(b) Refusing to engage in joint negotiations with SEIU Dis-
trict 1199 and OPEIU Local 514 for an agreement to succeed
the 1993–1996 agreement that expired December 16, 1996.
(c) Granting bargaining unit employees a unilateral wage in-
crease, without affording SEIU District 1199 and OPEIU Local
514 the opportunity to bargain on the amount of the increase.
(d) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) On request, bargain for a new agreement with SEIU Dis-
trict 1199 and OPEIU Local 514 as the joint representative of

1 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
the bargaining unit of group 1 and group 2 employees listed in
the 1993–1996 agreement, which expired on December 16,
1996, and if an understanding is reached, embody the under-
standing in a signed agreement.
(b) On request, bargain with SEIU District 1199 and OPEIU
Local 514 on the amount of the wage increase unilaterally an-
nounced on January 17, 1997.
(c) On request, process all grievances that it refused to proc-
ess since the May 31, 1994 merger of group 1 members of
SEIU Local 3 with SEIU District 1199.
(d) Promptly furnish to SEIU District 1199 and OPEIU Lo-
cal 514 all bargaining information they requested on March 10
and 25, 1997.
(e) Within 14 days after service by the Region, post at its fa-
cility in Defiance, Ohio, copies of the attached notice marked
“Appendix.”2 Copies of the notice, on forms provided by the
Regional Director for Region 8, after being signed by the Re-
spondent's authorized representative, shall be posted by the
Respondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to ensure that the notices
are not altered, defaced, or covered by any other material. In
the event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facility in-
volved in these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Respondent at
any time since June 9, 1995.
(f) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed inso-
far as it alleges violations of the Act not specifically found.
2 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”